Getting free-will marriage dissolved unconstitutional: LHC

Published August 19, 2021
The judge made these observations in a verdict on a petition by a woman against the police for causing harassment at the behest of her family members since she married a man of her choice. — Wikimedia Commons/File
The judge made these observations in a verdict on a petition by a woman against the police for causing harassment at the behest of her family members since she married a man of her choice. — Wikimedia Commons/File

LAHORE: The Lahore High Court has regretted that filing of petitions by women after tying knots with men of their choice against the will of their kinfolks is a widespread phenomenon.

“The most distressing aspect of such petitions is that these are frequently filed, as preventative measures to confront an illusory apprehension against the close blood relatives like real fathers, brothers and even mothers,” observes Justice Ali Zia Bajwa.

However, he notes that in some cases, a well-founded threat to the lives of newly-wedded couples actually exists.

The judge made these observations in a verdict on a petition by a woman against the police for causing harassment at the behest of her family members since she married a man of her choice.

The judge observes that article 9 of the Constitution has strenuously vouched for the protections of right to life of every person and it is the duty of the constitutional courts to protect and safeguard all the fundamental rights.

Therefore, it remained a consistent practice of the court to issue appropriate directions to secure the right to life of such petitioners and also provide safeguards to their matrimonial lives.

The judge further observes that it is a settled law by now that an adult sui juris Muslim girl can marry a person of her choice without the consent of her Wali.

“Under Islamic law both male and female have the right to contract marriage with their own free will and their matrimonial life is protected under Article 35 of the Constitution,” he adds.

However, the judge laments that it is a common practice of our society that whenever a marriage is contracted without the approval of families, close relatives make every possible effort to break that wedlock, which is unconstitutional.

He says the state is duty bound to protect the marriage, life and liberty of legally wedded couples.

Justice Bajwa refers to different judgements passed by the superior courts with certain directions to deal with such cases.

However, he says, to prevent the abuse of such directions, the courts should be extra cautious and watchful while issuing such directions and should ensure the presence of wedded couple before the court, especially the female petitioner in order to rule out that any such petition has been filed for some ulterior motive other than what is prayed for.

The judge observes that in the case in hand petitioner and her husband, present before the court, are legally wedded wife and husband as their nikahnama has been placed on the record and they own it.

Disposing of the petition, the judge directed the police to remain within the four corners of law and desist from causing harassment in illegal manner to the petitioner or her spouse.

Published in Dawn, August 19th, 2021

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